Com. v. Withrow, M.

• Court: Superior Court of Pennsylvania
• Decided: June 5, 2018
• Docket: 847 WDA 2017
• Status: Unpublished

Opinion

J-S85022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL WITHROW : : Appellant : No. 847 WDA 2017

Appeal from the Judgment of Sentence May 11, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011311-2016

BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J. FILED JUNE 05, 2018

Michael Withrow appeals from the judgment of sentence entered in the

Allegheny County Court of Common Pleas, following his convictions for

possession of a firearm without a license, and receiving stolen property.1 We

affirm.2

The relevant facts and procedural history of this case are as follows.

Undercover police were driving an unmarked car while patrolling a high-crime

neighborhood in Pittsburgh. They observed a green SUV with oversized wheels

and a missing exhaust pipe driving down the road. The officers could see

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1 18 Pa.C.S.A. §§ 6106(a)(1) and 3925(a), respectively.

2Appellant’s counsel, Jessica L. Herndon, Esquire, filed a motion to withdraw as counsel, informing us that she resigned from the Allegheny County Public Defender’s Officer effective May 1, 2018. We grant the motion to withdraw. Appellant remains represented by other attorneys from that office. J-S85022-17

passengers in the SUV repeatedly looking back at the officers’ unmarked car.

Before officers were able to pull over the SUV for suspected Motor Vehicle

Code violations, it stopped. Two men got out, and walked to opposite sides of

the street from one another. A female moved to the driver’s seat and drove

the SUV down the street.

The men appeared nervous, and attempted to shield the front of their

bodies from the officers’ view by turning away from the unmarked car. The

officers believed these actions were intended to conceal objects on the front

of their persons. One of the officers observed Appellant was wearing tight

pants, through which he could see the L-shaped outline of what the officer

immediately recognized to be a firearm. The officer believed Appellant did not

look old enough to have a concealed carry permit. The officers immediately

stopped Appellant and his companion, patted them down, and found a firearm

in Appellant’s front left pocket.

Appellant filed a motion to suppress the firearm, which the court denied

after a hearing. Appellant then immediately proceeded to a bench trial on

stipulated facts. The Commonwealth presented evidence the gun had been

reported stolen. The parties stipulated Appellant did not have a license to carry

a firearm, and the gun’s owner did not give Appellant permission to use it.

The court found Appellant guilty of both possession of a firearm and receiving

stolen property, and sentenced him on the § 6106(a)(1) conviction to three

years’ probation. The court imposed no further penalty on the § 3925(a)

conviction. Appellant did not file any post-sentence motions. On appeal,

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Appellant challenges the court’s denial of his suppression motion, and the

sufficiency of the evidence to support his conviction for receiving stolen

property.

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).

There are three levels of interaction between citizens and police officers:

(1) a mere encounter, (2) an investigative detention, and (3) a custodial

detention. See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super.

2007). An investigatory detention, otherwise known as a Terry3 stop, permits

an officer to briefly detain “an individual in order to conduct an investigation

if that officer reasonably suspects that the individual is engaging in criminal

conduct.” Commonwealth v. Raglin, 178 A.3d 868, 872 (Pa. Super. 2018)

3 Terry v. Ohio, 392 U.S. 1 (1968).

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(citations omitted). Mere presence in a high crime area is insufficient to

support a finding of reasonable suspicion; however, a court may consider that

fact in assessing the totality of the circumstances. See In re D.M., 781 A.2d

1161, 1163-1164 (Pa. 2001).

If at any point during this investigatory detention, an “officer believes,

based on specific and articulable facts, that the individual is armed and

dangerous” the officer may perform a Terry frisk. Commonwealth v.

Stevenson, 894 A.2d 759, 772 (Pa. Super. 2006) (citation omitted). “The

purpose of this limited search is not to discover evidence of crime, but to allow

the officer to pursue his investigation without fear of violence.”

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011) (citations

omitted). “The fundamental inquiry” in reviewing the officer’s decision “is an

objective one,” utilizing “a totality of the circumstances test.”

Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008) (citations

omitted).

One of the arresting officers testified at the suppression hearing. He

stated he was patrolling a high-crime area with other undercover officers,

when an SUV that appeared to be in violation of several Vehicle Code

regulations caught his attention. See N.T., Suppression Hearing, 5/10/17, at

4. Before the officers were able to conduct a traffic stop, the SUV pulled over,

and Appellant and another man got out. See id., at 5. The men made evasive

motions, turning away from the officers in an apparent effort to hide an object

or objects in their front pockets. See id. The officer testified he could see the

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outline of what he immediately recognized as a firearm through Appellant’s

tight clothing, and he did not believe Appellant looked old enough to have a

license to carry a concealed weapon. See id., at 12. The officers then stopped

Appellant and his companion, and patted them down for weapons. See id., at

11. After discovering Appellant was carrying a firearm and did not have a

license to carry a concealed weapon, the officers arrested him.

Based on the foregoing, the totality of the circumstances support the

officers’ stop and frisk of Appellant. Thus, we find the court did not abuse its

discretion by denying Appellant’s motion to suppress.

Appellant also argues the Commonwealth failed to present sufficient

evidence that Appellant knew the gun was stolen. We disagree.

Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find each element of the crimes charged is

established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003).

“[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See Commonwealth

v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004) (citation omitted). “As an

appellate court, we do not assess credibility nor do we assign weight to any

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of the testimony of record.” Id. (citation omitted). Therefore, we will not

disturb the verdict “unless the evidence is so weak and inconclusive that as a

matter of law no probability of fact may be drawn from the combined

circumstances.” Bruce, 916 A.2d at 661 (citation omitted). Evidence is weak

and inconclusive “[w]hen two equally reasonable and mutually inconsistent

inferences can be drawn from the same set of circumstances….”

Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946).

However, “[t]he Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.

Super. 2009) (citations omitted).

A conviction for receiving stolen property requires the Commonwealth

prove the defendant “intentionally receive[d], retain[ed], or dispose[d] of

movable property of another knowing that it [had] been stolen, or believing

that it [had] probably been stolen[.]” 18 Pa.C.S.A. § 3925(a). Mere possession

of a stolen object, without more, is insufficient to establish guilty knowledge.

See Commonwealth v. Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002).

Circumstantial evidence that may support an inference of such knowledge

includes the length of time between the theft and the discovery of the stolen

property, as well as

the place or manner of possession, alterations to the property indicative of theft, the defendant’s conduct or statements at the time of arrest (including attempts to flee apprehension), a false explanation for the possession, the location of the theft in comparison to where the defendant gained possession, the value

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of the property compared to the price paid for it, or any other evidence connecting the defendant to the crime.

Commonwealth v. Robinson, 128 A.3d 261, 268 (Pa. Super. 2015) (en

banc) (citations omitted).

Here, the Commonwealth presented evidence at trial that the gun’s

owner reported it stolen. Both parties stipulated that if called to testify, the

owner would state Appellant did not have his permission to use the gun. See

N.T., Trial, 5/11/17, at 18. One of the arresting officers testified he could see

Appellant and his companion repeatedly looking back at them through the

windows of the SUV. See id., at 5. After alighting from the SUV, the officer

stated Appellant looked nervous—and he attempted to shield the front of his

body from view. See id., at 6.

In its opinion, the trial court states it rejected defense counsel’s

argument that the Commonwealth failed to demonstrate the knowledge

element of the receiving stolen property offense because it “ultimately

determined [Appellant] would necessarily have known the gun wasn’t his. The

attendant circumstances – including [Appellant’s] age of 18 (thus being unable

to legally possess a concealed weapon) and his evasiveness with the police

officers – all support this [c]ourt’s determination.” Trial Court Opinion, filed

10/17/17, at 6.

By itself, Appellant’s possession of the firearm does not establish he

knew it was stolen. However, the court permissibly inferred that knowledge

based on the circumstances and his accompanying behavior. Appellant

behaved evasively: he exited the car after he and his companion believed they

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were being followed and attempted to shield the front of his body from the

officers, in order to hide the firearm. Coupled with Appellant’s age—18 years

old—4the circumstances support the finding that Appellant knew the gun had

been stolen, or believed it probably had been stolen.

Thus, we find the evidence supporting Appellant’s receiving stolen

property conviction to be sufficient, and we affirm his judgment of sentence.

Judgment of sentence affirmed. Motion granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/5/2018

4Apart from exceptions not pertinent here, “a person under 18 years of age shall not possess or transport a firearm anywhere in this Commonwealth.” 18 Pa.C.S.A. § 6110.1(a). “Firearm” is defined, in pertinent part, as “[a]ny pistol … with a barrel length less than 15 inches….” 18 Pa.C.S.A. § 6102.

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